To recap, the defendants were charged in a massive crack conspiracy, plus violent crimes. They went to trial, which took 8 months. The jury deliberated for more than two months before returning a verdict. They acquitted on all counts, except a single distribution count of 600 grams of crack. Great result? Not so fast.

At sentencing, the district court nevertheless found that all three defendants had engaged in the charged conspiracy and, based largely on that finding, sentenced them to terms of imprisonment ranging from fifteen to nearly nineteen years.

But, but, but . . . acquittal? Not in this system, pal. Welcome to the world of acquitted conduct sentencing, where the judge makes a finding by a preponderance of evidence (whereas, the jury can only convicted on the basis of “beyond a reasonable doubt”) that related conduct happened, and can then sentence the defendant upon the basis of the related conduct, even if the jury explicitly acquitted the defendant of the crime.

See how that works?

The absurd anomaly happens because of the different standards of proof required for sentencing as opposed to conviction. In the process, it reduces the trial to a farce, as win, lose or draw, the defendant gets sentenced for the conduct anyway. Cool system, right?

For Ball, his statutory exposure was 5 to 40 years, and as long as the judge sentenced him within the statutory window, it didn’t require a jury to make a finding. While cases like Alleyne v. United States seem to be trending toward requiring a jury determination, there remains a huge gap within the statutory window where a judge can do pretty much whatever he wants, including sentencing a defendant for the very crimes for which the jury acquitted, as long as he mouths the words that show he has considered the correct legal standards for doing so.

Appellants also argue that their sentences violated their Sixth Amendment right to trial by jury because they were based, in part, on appellants’ supposed involvement in the very conspiracy that the jury acquitted them of participating in…

Although we understand why appellants find sentencing based on acquitted conduct unfair, binding precedent of this court establishes that the practice does not violate the Sixth Amendment when the conduct is established by a preponderance of the evidence and the sentence does not exceed the statutory maximum for the crime.

Why? Because precedent. Because it’s what the federal courts consider “individualized sentencing” based upon the defendant’s “real” conduct. Because a dog can lick his own balls the judge can impose any damn sentence he pleases within the statutory window.

Whenever anyone throws out the heart-warming trope that this is the worst system ever, except for every other, remind them of acquitted conduct sentencing. This is outrageous and intolerable. If a person is acquitted of a crime by a jury, then he should not be sentenced for it nonetheless.

Update: But then, former federal judge cum false confession denier cum victim’s rights advocate, Paul Cassell, at the WaPo Conspiracy, thinks sentencing Ball on acquitted conduct is not merely the current state of the law, but just fine and dandy.

Despite having seen how crack addiction ravaged his own family, he had chosen at an adult age to lead a narcotics conspiracy that “spread[] freely” that same “poison . . . on the streets of [his] community.” In the process, he had “show[n] no respect for human life” and had “not hesitate[d] to use violence.” He had sold crack, stolen other crack, and “viciously pistol-whipped Bobby Capies [to deter him from] try[ing] to take over [Ball’s] crack market”; “pressured teenaged girls not to tell anyone about the murder that they saw Dominic Samuel[s] . . . commit[],” one Samuels later “admit that he committed”; and “testified in a grand jury that [he did not] believe in reporting crimes, even murders.” Those kinds of detailed findings were possible only because Roberts was intimately familiar with Ball’s activities from presiding over the trial.

Because the jury that also heard all the evidence and yet acquitted him was (pick as many as apply) wrong, stupid, ignorant and, well, they acquitted him!?!

In short, when a judge sentences on the basis of acquitted conduct, he is acting with far more information than is typically available at sentencing. I see no reason to be worried about Ball’s sentence — or, more generally, the fact that judges apply ordinary burdens of proof when resolving factual disputes at sentencing.

So the only real problem here is that you can’t sentence him to cancer as well? Got it.

But as Scalia explained at length in his concurrence in Rita, this is a problem. If appellate courts affirm a long sentence only because of the judge-found facts, then they are essentially creating a new common-law maximum sentence; they’re implying that a 19-year sentence for simple possession would be unreasonable, but that sentence for a massive conspiracy would be reasonable.

That means that there’s a maximum sentence imposed on the district judge from above, unless the judge finds a fact that justifies a higher sentence. This kind of imposition, Apprendi and Blakely and Booker said, was unconstitutional. It’s not the district judge’s decision to issue a long sentence that’s the problem; it’s the requirement that the judge justify that sentence using judge-found facts.

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I apologize for the banal comment. Not being a criminal defense attorney (my interest in criminal law comes from my civil rights practice), I was unaware of “acquitted conduct sentencing.” This makes my stomach sink. A truly tyrannical regime, which I’m sure was “justified” with all sorts of fancy legal talk in the “precedent” referred to. Appalling that this happens in this supposedly free and just country.

They would have to be subject to sentence for something. But, even when they are acquitted of all charges, that doesn’t mean there won’t be a violation of supervised release, where it will come back to bite them, although within far greater limits.

Moreover, even a conviction for an entirely different (and far less serious) offense is sufficient to permit the sentencing judge to pile on the years based on acquitted conduct. Thus, when one of my clients who was acquitted of 10 year plus drug conspiracy charges but pleaded guilty to failing to appear on the original trial date went to sentencing, the US sought to tag him for the drug quantity. Had the judge accepted the government’s argument, my guy would have gotten the statutory maximum for the failure to appear rather than a sentence within the 6-12 month range.

Compounding the problem is the virtual impossibility of securing a severance of charges in the face of judicial efficiency arguments.

“Whenever anyone throws out the heart-warming trope that this is the worst system ever, except for every other”

There are many, many justice systems in the world that have much better procedural safeguards and due process protections than the American one… including at least three Commonwealth countries. Anyone throwing out that trope doesn’t know much about justice systems around the world.

All the protections in the universe are useless if the system routinely ignores, subverts, or interprets them out of existence. Until we start honoring the protections we already have, there isn’t much use in looking around for new ones.

I wish I could say that this sort of nonsense from Cassell was either shocking or unexpected. Sadly, this fundamental ignorance and lack of respect for Constitutional rights of defendants seems to be right up his alley.

Give a man a fish, he’ll eat for a day. Find a man guilty of illegal possession of a fish, and you can feed him prison food for life by sentencing based on the massive conspiracy and other charges that the jury, in their naivete, just acquitted him of.

This is absurd. I can at least comprehend the argument in favor of a judge taking into account dismissed counts/conduct as part of a plea agreement. Not that I agree with it, but at least there is a somewhat rational argument that it’s relevant in determining the appropriate sentence. But after an acquittal? Bullshit. You’re innocent until a jury says otherwise, period. And when it fails to say otherwise, even after the state/Feds put forth it’s best shot, guess what judge: he didn’t do it.

On another note, it’s got to feel good to the defendant that the panel at least “understands” how he can feel this is unfair.

Scott H. Greenfield

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